CJEU decides that Web browsing DOES fall within Article 5(1)

In the case of  Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others,  case C‑360/13,The Court of Justice of the European Union has held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the Hiugh Court and the Court of Appeal and the case was referred to the CJEU by the UK's Supreme Court where Lord Sumption summarised the case thus:

The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner." 

At the heart of the case was whether such copies fall within the meaning of Article 5(1) of The InfoSoc Directive 2001/29/EC (and and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988). The test is actually five steps - the referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider the first three conditions.

- it is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
- it has no independent economic significance.

The court decided that yes indeed such copies WERE (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process.  For the copies at issue in the main proceedings to be used without authorisation of the copyright owner as an exception,  the use also had to satisfy the conditions laid down in Article 5(5) and again the Court found that the test was satisfied: The exception would apply only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders. Yes said the Court  - all three steps are satisfied - concluding "Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."  

PRCA director general Francis Ingham added "The Court of Justice, like the Supreme Court before it, understands that the NLA’s attempts to charge for reading online content do not just affect the PR world, but the fundamental rights of all EU citizens to browse the internet" and "This is a huge step in the right direction for the courts as they seek ways to deal with the thorny issues of internet use and copyright law. We are pleased that we have stood up for the PR industry – along with Meltwater – when everyone else rolled over."

However, David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week  "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. This ruling does not change anything in that. If you're a client of Meltwater, you still need a licence to view that content." adding  "This will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content; if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies."

More from Eleonora on the IPKat here.

NLA v Meltwater: temporary copies issue referred to the CJEU

Readers will remember that both the High Court and the Court of Appeal held, in NLA v Meltwater, that users of Meltwater's news aggregation service need a licence from the NLA in order to receive and read Meltwater news snippets. The specific question of whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive was appealed to the Supreme Court.

There has been some heated discussion on this blog as to whether the case would or would not break the internet, and several academics locked horns to debate whether the case meant the end of browsing. This is a topic on which everyone has an opinion, because the question of whether it is legal to read material online is an important one. So important that the Supreme Court has today held that it will refer the question of temporary copies to the CJEU.

The Supreme Court's decision contains a thorough analysis of the temporary copies exception and previous CJEU case law, and sets out the conclusions that it reaches on the effect of the Information Society Directive as the CJEU has interpreted and applied it to date.

The decision notes that if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing.

The Supreme Court recognises that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union."

On that basis the Supreme Court will refer to the CJEU the question whether the requirements of article 5.1 of the Information Society Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of the Supreme Court judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

The specific questions to be referred are yet to be decided.

 

Disclaimer: Baker & McKenzie acts for Meltwater and PRCA in this case.

Google fights proposed charge on news snippets and headlines

News aggregation sites: newspapers can't live with them and can't live without them.

Is the newspaper a dying breed?

In June, the German government published draft legislation which would require news aggregation sites to pay royalties on the snippets and headlines that they publish. These royalties would be paid to a new collecting society which would distribute them to the publishers.

According to Information Week, a recent revision to the draft legislation has limited the scope of the copyright proposal. The first draft included a new "ancillary copyright" that would have required companies to pay licensing fees for any published work used in a commercial setting. This would have meant companies payinig a licensing fee for any published works (including online news) consumed in the work place. The most recent draft, which remains under discussion, seems to relate only to snippets and headlines on news aggregation websites. This blogger cannot however find a copy of the draft legislation so is unable to provide further details.

Unsurprisingly, Google is fighting back. Yesterday Kay Oberbeck, Google's Director of Communications and Public Affairs for Germany, commented on the proposed amendments on his blog. His post is in German, however according to Google Translate he is of the view that the bill is "A law to the detriment of all".

Oberbeck has also said:

"Nobody sees a real reason why this should be implemented. It's really harmful, not just for users who wouldn't find as much information as they find now, but such a law is also not justified for economic reasons or judicial reasons."

Further, Oberbeck points out that Google send readers to the publishers' site and that anyone who doesn’t want their content to be indexed by Google use a robots.txt file.

This may sound very familiar: English readers will know that a similar battle is currently being fought in the UK. The Newspaper Licensing Agency took Meltwater, a paid-for news aggregation site, to the High Court and the Court of Appeal to confirm that both paid-for news aggregation sites and their commercial users need to pay royalties for the headlines and snippets of articles consumed. The case proceeds to the Supreme Court on the very narrow issue of whether the copies of the articles viewed by users are temporary copies under s.28A CDPA 1988, however for the time being both news aggregators and users are required to pay licensing fees.

This has proved to be an unsurprisingly unpopular decision for news aggregators, however interestingly the Newspaper Licensing Agency is not charging free news aggregation sites, so Google remains unaffected in the UK.

Will the bill be passed in Germany? The German federal elections are just over a year away and opponents of the neighbouring right are expected to challenge successive sets of proposals. The fact that the two sides appear to take conflicting views on the bill means that anything could happen.

According to Kay Oberbeck "It is absurd that, of all people search engines should be addressees of the law. Such a law protects no one and hurts everyone - users, publishers, search engines, and the German economy."

Browsing and linking: should the government get involved?

Is it illegal to browse the internet? As counterintuitive as it may seem the answer is that yes, sometimes it is, even if you are browsing content which is entirely legal. Unsurprisingly this is a hot topic, currently being considered both by the government and by the courts, as well as by consumers.

Out-Law.com recently reported that James Mackenzie, commercial director of the media monitoring agency Cutbot, publicly said that businesses and internet users could both suffer if the government waits for the courts to interpret whether browsing and linking are lawful acts. He said that "If Parliament fails to act, ministers risk seeing the innocent browsing of the web criminalised and legitimate UK businesses being stifled."

The debate stems from the NLA v Meltwater litigation which has seen the High Court and the Court of Appeal consider whether headlines and extracts from articles can be protected by copyright. Both courts found that they can, however Meltwater and the Public Relations Consultants Association have referred the question of whether temporary copies of the headlines or extracts, made on users' computers (on their screens or their hard drives) when browsing the internet constitute temporary copies for the purpose of s.28A CDPA or Art. 5 InfoSoc Directive.

In the meantime the NLA is enforcing licences on both media monitoring organisations and their users. The licence fees have been greatly reduced by the Copyright Tribunal (as reported here), but the licences remain unpopular, as evidenced by Cutbot's blogpost "we object to the newspaper licensing agency's terms", which you can read here.

So what's next? Will the government intervene?

The issue of whether browsing and linking should explicitly be made legal was recently considered by the House of Commons in a public committee meeting on the Enterprise and Regulatory Reform Bill. A proposed new section was debated:

"30A Sharing and viewing on the internet

Where work is made available to the public at a particular web address with the permission of the owner of the copyright in that work, copyright shall not be infringed by -

(a) any circulation of that web address, or of its title, or of another web address that redirects to that web address;

(b) the downloading of any data required to display that work at that address, and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work.".

Labour MP Fiona O'Donnell said that:

"It is evident that the law has not caught up with new media and the worldwide web, and the Government must respond."

She went on to quote Professor Lionel Bently, of Cambridge University who has said that

"There is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal."

Business Minister Norman Lamb has previously said  that the copyright licensing system is behind the times, and that it needs to be modernised to become fit for the 21st century. He does not however support O'Donnell's argument, saying that links have been dealt with in the Meltwater case and that it is necessary to await the outcome of the case.

The debate continued, with MPs discussing amongst other things hypothetical extracts from the novel "50 Shades of Grey", however the outcome was 11:6 against the amendment.

Lamb said that:

"Ultimately, the matter is for the courts to determine. As the law is evolving and practice is evolving, as we use the internet more and more, to a degree, one has to wait for judicial decisions on the basis of European law to determine whether any particular act is lawful. Ultimately, they are decisions for the courts".

What do you think? Given that the Meltwater case will not be heard by the Supreme Court until February 2013, should the government intervene or can we afford to wait for the court's decision?

Disclaimer: Baker & McKenzie, and this blogger, represent Meltwater and the Public Relations Consultants Association.